Citation Nr: 0723581
Decision Date: 07/31/07 Archive Date: 08/14/07
DOCKET NO. 05-25 541 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Wilmington,
Delaware
THE ISSUES
1. Entitlement to service connection for right ear hearing
loss.
2. Entitlement to an initial compensable evaluation for left
ear hearing loss.
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart of the U.S.A.
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
K. Fitch, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1973 to
November 1976.
This matter comes before the Board of Veterans' Appeals
(Board) from a June 2004 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) that, among other
things, granted service connection for left ear hearing loss,
evaluated as noncompensable effective April 17, 2004, and
denied service connection for right ear hearing loss. The
veteran perfected an appeal of these determinations to the
Board.
In January 6, the veteran and his spouse, accompanied by the
veteran's representative, testified at a hearing conducted
before the undersigned Veterans Law Judge. A transcript of
these proceedings has been associated with the veteran's
claims file.
The issue of entitlement to service connection for right ear
hearing loss is addressed in the REMAND portion of the
decision below and is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
VA audiometric test results obtained in April and October
2004 show that the veteran had level I hearing in the left
ear for the two examinations of record.
CONCLUSION OF LAW
The criteria for a compensable evaluation left ear hearing
loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West
2002); 38 C.F.R. §§ 3.321, 4.2, 4.7, 4.10, 4.85 Diagnostic
Code 6100 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. VCAA
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at
38 C.F.R. § 3.159, amended VA's duties to notify and to
assist a claimant in developing the information and evidence
necessary to substantiate a claim.
Under 38 U.S.C.A. § 5103, VA must notify the claimant of the
information and evidence not of record that is necessary to
substantiate the claim, which information and evidence that
VA will seek to provide and which information and evidence
the claimant is expected to provide. Furthermore, in
compliance with 38 C.F.R. § 3.159(b), the notification should
include the request that the claimant provide any evidence in
the claimant's possession that pertains to the claim.
The Board notes that in a letter dated in September 2003, the
RO provided the veteran with the required notice under
38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159(b). The veteran was
notified regarding what the evidence must show with respect
to his claim for service connection, and also provided
adequate notice of the evidence, which was not of record,
that was necessary to substantiate the claim. The veteran
was informed of the cumulative information and evidence
previously provided to VA, or obtained by VA on the veteran's
behalf, and the veteran was generally invited to send
information or evidence to VA that may support the claim.
In this regard, the Board observes that in Dingess v.
Nicholson, the Court recently held that upon receipt of an
application for service connection, VA is required to notify
a claimant of what information and evidence will substantiate
the elements of the claim for service connection, including
that a disability rating and an effective date for the award
of benefits will be assigned if service connection is
awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In
Dingess, however, the Court also declared, that "[i]n cases
where service connection has been granted and an initial
disability rating and effective date have been assigned, the
typical service-connection claim has been more than
substantiated-it has been proven, thereby rendering section
5103(a) notice no longer required because the purpose that
the notice is intended to serve has been fulfilled." Id. at
491. As such, no further VCAA notice is required with
respect to the veteran's claim for initial higher disability
rating for his service-connected left ear hearing loss; and
under the circumstances, the Board finds no prejudice to the
veteran in proceeding with the issuance of a final decision.
See Bernard v. Brown, 4 Vet. App. 384 (1993); see also Soyini
v. Derwinski, 1 Vet. App. 540, 546 (1991).
The Board also finds that VA has made reasonable efforts to
assist the veteran in obtaining evidence necessary to
substantiate his claim. 38 U.S.C.A. § 5103A (West 2002). In
particular, the information and evidence associated with the
claims file consists of the veteran's service medical
records, post-service treatment records, a VA examination in
connection with the claim, and statements submitted by the
veteran and his representative in support of the claim.
Based on the foregoing, the Board concludes that there is no
identified evidence that has not been accounted for with
respect to the veteran's claim. Therefore, under the
circumstances of this case, VA has satisfied its duty to
assist the veteran and further development and further
expending of VA's resources is not warranted. See
38 U.S.C.A. § 5103A.
II. Increased rating claim.
Disability evaluations are determined by comparing a
veteran's present symptomatology with criteria set forth in
the VA's Schedule for Rating Disabilities, which is based on
average impairment in earning capacity. See 38 U.S.C.A.
§ 1155 (West 2002); 38 C.F.R. Part 4 (2005). When a question
arises as to which of two ratings apply under a particular
diagnostic code, the higher evaluation is assigned if the
disability more nearly approximates the criteria for the
higher rating; otherwise, the lower rating will be assigned.
See 38 C.F.R. § 4.7 (2005).
After careful consideration of the evidence, any reasonable
doubt remaining is resolved in favor of the veteran. See
38 C.F.R. § 4.3 (2005). The veteran's entire history is
reviewed when making disability evaluations. See 38 C.F.R.
4.1 (2005); Schafrath v. Derwinski, 1 Vet. App. 589, 592
(1995). However, where the question for consideration is the
propriety of the initial evaluation assigned after the grant
of service connection, evaluation of the medical evidence
since the effective date of the grant of service connection
and consideration of the appropriateness of "staged
ratings" is required. See Fenderson v. Brown, 12 Vet. App.
at 126.
The veteran's left ear hearing loss is currently rated as
noncompensable under Diagnostic Code 6100 of the Rating
Schedule. Under this Code, defective hearing evaluations
range from noncompensable to 100 percent based on organic
impairment of hearing acuity as measured by the results of
speech discrimination tests together with the average hearing
threshold levels as measured by pure tone audiometry tests in
the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per
second (hertz). To evaluate the degree of disability for
service-connected hearing loss, the rating schedule
establishes eleven (11) auditory acuity levels, designated
from level I for essentially normal acuity through level XI
for profound deafness. 38 C.F.R. § 4.85.
Disability ratings for hearing impairment are derived by a
mechanical application of the rating schedule to the numeric
designations assigned after audiometric evaluations are
rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992).
When the pure tone thresholds at the four specified
frequencies (1000, 2000, 3000, and 4000 hertz) are 55
decibels or more, or when the pure tone thresholds are 30
decibels or less at 1000 Hz and 70 decibels or more at 2000
Hz, the rating specialist will determine the Roman numeral
designation for hearing impairment from either Table VI or
Table VIa, whichever results in the higher numeral. That
numeral will then be elevated to the next highest Roman
numeral. 38 C.F.R. § 4.86. In addition, if impaired hearing
is service-connected in only one ear, in order to determine
the percentage evaluation from Table VII, the non service-
connected ear will generally be assigned a Roman Numeral I.
38 C.F.R. § 4.85(f).
The medical evidence in this case consists of two recent
audiological evaluations dated in April and October 2004.
These examinations revealed maximum pure tone threshold
levels, in decibels, as follows:
HERTZ
500
1000
2000
3000
4000
LEFT
10-15
15
15
50-60
45-50
Speech audiometry, when indicated, revealed speech
recognition ability of 96% for each ear.
The mechanical application of the rating schedule to the
examinations of record shows that the veteran had level I
hearing in the left ear for the two examinations of record.
Under 38 C.F.R. § 4.85, this evaluation warrants a
noncompensable rating for the veteran's left ear hearing
loss. 38 C.F.R. § 4.85; Diagnostic Code 6100 (2006). In
light of the foregoing, entitlement to a higher evaluation
for the veteran's disability is not warranted.
ORDER
Entitlement to an initial compensable evaluation for left ear
hearing loss is denied.
REMAND
After a careful review of the claims folder, the Board finds
that the veteran's claim for service connection for right ear
hearing loss must be remanded for further action.
Here, the Board notes that the veteran has been service-
connected for left ear hearing loss based in part on the
results of a VA examination dated in April 2004 and a
corresponding nexus opinion, also dated in April 2004. At
the time of the April 2004 VA examination, the veteran did
not show hearing loss for VA purposes in his right ear.
Since that time, the veteran was again examined in connection
with his hearing loss. In an October 2004 private
audiological examination, the veteran was found to have right
ear hearing loss sufficient to meet the criteria for VA
hearing loss. The veteran also submitted the statement of
his private physician dated in July 2004 indicating that the
veteran's hearing loss had recently worsened.
In addition, the veteran testified that he had in-service
noise exposure, as a result of his service in the Air Force,
to include noise exposure on the flight line and in an engine
shop. The Board finds therefore that this matter must be
remanded for further development to include a VA audiological
examination to determine whether the veteran now currently
suffers hearing loss in his right ear for VA purposes, and if
so, whether this hearing loss is related to or had its onset
during service. Specifically, the examiner should comment on
whether any exposure to noise in service resulted in his
current hearing loss. Pursuant to the VCAA, such an
examination is necessary to adjudicate this claim. See
38 U.S.C.A § 5103A (West 2002); 38 C.F.R. § 3.159(c)(4)
(2003).
Prior to affording the veteran a VA examination in connection
with his claim, the veteran should be afforded an opportunity
to submit additional evidence relevant to his claim. In this
regard, the Board notes that records generated by VA
facilities that may have an impact on the adjudication of a
claim are considered to be constructively in the possession
of VA adjudicators during the consideration of a claim,
regardless of whether those records are physically on file.
See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v.
Derwinski, 2 Vet. App. 611, 613 (1992). Pursuant to the
VCAA, VA must obtain these outstanding VA and private
records. See 38 U.S.C.A. § 5103A(b-c) (West 2002); 38 C.F.R.
§ 3.159(c) (2004).
Finally, the Board notes that during the pendency of this
appeal, the United States Court of Appeals for Veterans
Claims (Court) issued a decision in Dingess v. Nicholson, 19
Vet. App. 473 (2006), which held that the VCAA notice
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. §
3.159(b) apply to all five elements of a service connection
claim, including the degree of disability and the effective
date of an award. In the present appeal, the veteran was
provided with notice of what type of information and
evidence was needed to substantiate his service connection
claim, but was not provided with notice of the type of
evidence necessary to establish a disability rating or an
effective date. Upon remand therefore, the veteran should
be given proper notice under 38 U.S.C.A. § 5103(a) and 38
C.F.R. § 3.159(b), that informs the veteran that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded,
and also includes an explanation as to the type of evidence
that is needed to establish both a disability rating and an
effective date.
In view of the above, this matter is REMANDED to the RO for
the following actions:
1. The RO should send the veteran, and
his representative, if any, a letter that
contains a notice under 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b), that
includes an explanation as to the
information or evidence needed to
establish a disability rating and
effective date for the claims addressed
in this remand, as outlined by the Court
in Dingess v. Nicholson, 19 Vet. App. 473
(2006).
2. The RO should contact the veteran and
request that he identify all VA and non-
VA health care providers, not already
associated with the veteran's claims
file, that have treated him since service
for hearing loss. The aid of the veteran
in securing these records, to include
providing necessary authorizations,
should be enlisted, as needed. If any
requested records are not available, or
if the search for any such records
otherwise yields negative results, that
fact should clearly be documented in the
claims file, and the veteran should be
informed in writing.
3. After associating with the claims
folder all available records received
pursuant to the above-requested
development, the RO should schedule the
veteran for a VA audiological examination
in order to determine whether the veteran
suffers from right ear hearing loss for
VA purposes, and if so, to determine the
nature and etiology of any hearing loss
found to be present. All necessary
special studies or tests should be
accomplished. It is imperative that the
examiner who is designated to examine the
veteran reviews the evidence in the
claims folder, including a complete copy
of this REMAND, and acknowledges such
review in the examination report. The
report of examination should contain a
detailed account of all manifestations of
any hearing loss found to be present. If
the examiner diagnoses the veteran as
having right ear hearing loss, the
examiner should offer an opinion as to
whether it is at least as likely as not
that the right ear hearing loss was
caused by or had its onset during
service. Specifically, the examiner
should comment on whether any exposure to
noise in service resulted in his current
hearing loss. The examiner should set
forth the complete rationale for all
opinions expressed and conclusions
reached, in a legible report.
4. After completion of the above
development (and after undertaking any
additional development deemed warranted
by the record), the RO should review the
veteran's claims in light of all relevant
evidence and governing legal authority
and precedent. In the event the decision
remains adverse to him, the veteran must
be furnished a supplemental statement of
the case and be given an opportunity to
submit written or other argument in
response thereto before the claims file
is returned to the Board for further
appellate consideration.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
______________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs